Day-um!
Check out the line at 11PM last night to get into this morning’s oral arguments on McDonald v. City of Chicago. It’s almost as if the possibility (however remote) of restoring the privileges and immunities clause was a big deal. For comparison, I went to oral argument on the day that the Court heard both the Zelman v. Simmons-Harris school voucher case and the Atkins v. Virginia death penalty case, a rare two-fer of highly contentious, high profile culture war cases, and the line to get in wasn’t even this long at 4 AM, when I got there. Even then, I didn’t get in to see the arguments until well the second case, Atkins, was about 30% finished.
I don’t know what I’m more excited for, the McDonald decision or the spate of “activist judges are making us unsafe by making it hard for states and localities to limit explicit rights & privileges” commentary that is surely being written.Report
I’m excited for the case, but to be honest, I’m expecting that the Court will find a way of avoiding the privileges and immunities issue entirely. I hope I’m wrong, of course. Should I be wrong, the resulting commentary will be fascinating, especially under the circumstances – the faultlines of support and opposition will not fall along your usual left-right continuum.Report
I’m not convinced that the commentary won’t reflect traditional fault lines and use language (however inappropriate for this issue) that will try to play along those lines. If however they actually do overturn something like a century and a half of precedent, I hope no one who supports the ruling will ever ever ever say anything about “activist judges”. Or that if they do in some other case, that they lose their right to comment on constitutional law issues forever and ever.
Given the Court’s relative reluctance to take a very high case load (I mean the number of cert petitions they grant is becoming almost laughably small) I’m not sure if overturning Slaughter-House is actually something they’d contemplate.Report
As expected, it looks like they’re not going to reach the issue. Anyhow, the way that the case was breaking down, the more movement-oriented conservatives (the ones most likely to trot out the tired ‘activism’ charge) seemed to be firmly opposed to the P&I argument, while the more fringe-y elements of the Right were highly supportive thereof. As far as I could tell, a similar dynamic was at play on the Left, with the mainstream liberals largely fretting about gun control, and the civil libertarians chomping at the bit at the opportunity to overturn Slaughterhouse.Report
I meant more that the substance of P&I would get lost in teh “GUNZ vs. GUBBERMENT!!!!” debate that would come out first, but I have to admit I’m disappointed that they’re avoiding ruling on the precedent of Slaughterhouse which was an absolute travesty to begin with and should’ve been overturned long long ago.Report
Is this a fair summary of the background for the uninitiated?:
http://balkin.blogspot.com/2010/03/dont-trash-constitution-justice-scalia.htmlReport
Fair? I don’t know about that, since I’m biased myself. I will say that I’m in full agreement with it, though.Report
Parts, yes. The main problem is that it really doesn’t get into either the McDonald case nor place the current 14th amendment issues in any kind of reliable context.
It bashes Scalia and careens from normative judgement to casting aspersions and back again, which tells you very little about the legal issues, just personal ones.
I also – though Mark might look at this differently – don’t really put that much stock into the judges’ questions. They can be revealing but unlike C-span pontificating, they’re more of an academic exercise in poking and prodding legal arguments.
Not to mention Kendall disinterestedly refers to both an article he’s quoted in and an organization he’s quoted on behalf of without disclosing such information.
Finally, it omits a key piece of Justice Scalia’s position to make him seem like a hack, the Justice is “willing to accept the proposition that the Due Process Clause of the Fourteenth Amendment, despite its textual limitation to procedure, incorporates certain substantive guarantees specified in the Bill of Rights.”
Which is distinguished from rights granted via due process not specifically in the Bill of Rights which is a key difference that Kendall glides right over as if it doesn’t exist.Report
whoops meant this to be a reply to Michael’s comment.Report
Isn’t casting aspersions just a subset of normative judgement? Or if not, a common (if uncivil) follow-on action?Report
Frankly, the piece seemed pretty tame in the context of how disagreeing lawyers argue and characterize each other’s arguments. But I take your points on the analysis on board.Report
My experience is that it depends on the particular Justice, but that questions are always to at least some minimal degree helpful in figuring out where any Justice is leaning. Scalia tends to be probably the easiest to read based on his questioning, though.Report